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2024 MarsdenLR 713
COURT OF APPEAL PUTRAJAYA
AZMI ARIFFIN, JCA
GAN KOK SHANG & ANOR – Appellant
Versus
PP – Respondent
[Criminal Appeal No: B-05-79-03/2023]
The court reaffirmed that a prosecution only commences when a charge is read and a plea entered, allowing case transfers to the High Court without the Public Prosecutor's consent, thus protecting the right to a speedy trial.
Headnote:(A) Courts of Judicature Act 1964 - Section 50(1) - Criminal Procedure Code - Section 177A - Dangerous Drugs Act 1952 - Section 41A - Appellants charged under s 109 and s 302 of the Penal Code - High Court's decision to set aside transfer to Magistrate's Court without Public Prosecutor's consent found to violate right to speedy trial. (Paras 10-51)
(B) The principle from PP v. Marwan Ismail applied, confirming that prosecution only commences upon reading charge and plea, allowing transfer to High Court under s 177A without consent. (Paras 43-52)
Facts of the case:
The Appellants were charged but faced delays in proceedings due to the absence of the Public Prosecutor's consent, leading to a revision application by the Deputy Public Prosecutor. (Paras 1-9)
Findings of Court:
The High Court's order was deemed a final decision affecting the Appellants' rights, thus appealable. (Paras 19-32)
Issues: Whether the High Court's transfer order was a final decision and whether the appeal was academic. (Paras 18, 33)
Ratio Decidendi: The court concluded that the right to a speedy trial was violated due to procedural delays and reaffirmed the principles from PP v. Marwan Ismail regarding case transfers. (Paras 47-51)
Result: Appeal allowed, High Court's decision set aside, and Magistrate's Court decision reinstated. (Paras 53)
Introduction
[1] On 23 November 2021, the Appellants were charged in the Criminal Magistrates' Court in Klang for an offence under s 109 read together with s 302 of the Penal Code.
[2] Subsequent thereto, mention dates were held on 15 April 2022, 20 May 2022, 30 June 2022, 1 September 2022 and 12 October 2022 pending the production of the forensic report and Public Prosecutor's Consent to Prosecute. The learned counsel for the Appellants objected to the request for a further postponement.
[3] The learned Magistrate agreed and proceeded to transmit the Appellants' cases to the High Court . The Public Prosecutor then filed a revision application against that decision.
[4] On 8 December 2022, the learned Judicial Commissioner allowed the Respondent's / Deputy Public Prosecutor's application, set aside the order of the learned Magistrate and transferred the Appellants' cases back to the Magistrates' Court .
[5] Dissatisfied, the Appellants filed a Notice of Motion for leave to appeal to this Honourable Court based on three (3) questions of law which was subsequently allowed on 3 March 2023.
[6] On 12 April 2023, the Appellants filed Petition of Appeal.
[7] The hearing date for the Appellants' appeal was fixed for 18 August 2023.
[8] On 15 August 2023, the learned Deputy Public Prosecutor filed a Notice of Preliminary Objection based on the grounds that the Appellants' appeal is incompetent and has become academic.
[9] On 16 August 2023, the learned counsels for the Appellants received the said Notice dated 11 August 2023 from the Deputy Public Prosecutor vide email.
The Provisions Of Law
[10] Section 50 (1) of the Courts of Judicature Act 1964 , which vests this Honourable Court with the jurisdiction to hear substantive appeals, states:-
Jurisdiction to hear and determine criminal appeals
50. (1) Subject to any rules regulating the proceedings of the Court of Appeal in respect of criminal appeals, the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court -
(a) in the exercise of its original jurisdiction; and
(b) in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court .
[11] The word "decision" is defined in s 3 of the Courts of Judicature Act 1964 as meaning:-
"decision" means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties.
[12] Section 177A of the Criminal Procedure Code provides:
Transmission of case to, and trial by, the High Court
177A. (1) A prosecution in respect of an offence which is to be tried by the High Court 10 accordance with Chapter XX, shall not be instituted except by or with the consent of the Public Prosecutor:
Provided that a person may be arrested, or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody notwithstanding that the consent of the Public Prosecutor to the institution of a prosecution for the offence has not been obtained, but the case shall not be further prosecuted until the consent has been obtained.
(2) In any prosecution pursuant to subsection (1), the accused shall be produced before the Magistrate's Court which shall, after the charge has been explained to him, transmit the case to the High Court and cause the accused to appear or be brought before that Court as soon as may be practicable:
Provided that when the accused is brought before the Magistrate's Court before the Public Prosecutor has consented to the prosecution, the charge shall be explained to him but he shall not be called upon to plead thereto.
(3) When the accused appears or is brought before the High Court in accordance with subsection (2), the High Court shall fix a date for his trial which shall be held in accordance with the procedure under Chapter XX.
[13] Section 39B of the Dan
